Cullinane v Mercer Benefit Nominees Limited [2006] FCAFC 82

FEDERAL COURT OF AUSTRALIA

Cullinane v Mercer Benefit Nominees Limited [2006] FCAFC 82

SUPERANNUATION – appeal from decision of Superannuation Complaints Tribunal affirming decision of trustee of superannuation fund to reject member's claim for disablement benefit – dismissal of appeal by primary judge – requirement under superannuation fund trust deed that complainant have a "physical or mental incapacity" which renders her "unable to engage" in relevant work – whether Superannuation Complaints Tribunal erred by interpreting phrase "unable to engage" as meaning "permanently unable" – whether primary judge erroneously conflated expressions "permanently unable" and "unable now and for the foreseeable future" – whether requirements for disablement benefit satisfied by complainant demonstrating she has a physical or mental incapacity and is unable to work now and for the foreseeable future Held: (i) "permanently unable" is a more stringent requirement than "unable now and for the foreseeable future" (ii) the Tribunal erred in requiring the appellant to be "permanently unable" to engage in relevant work (iii) the appellant is entitled to have her claim considered against the requirement that she has a physical or mental incapacity which renders her unable to engage, now and for the foreseeable future, in relevant work WORDS AND PHRASES – "incapacity" and "unable"

Al-Kateb v Godwin(2004) 219 CLR 562 referred to Ball v William Hunt & Sons, Limited [1912] AC 496 referred to Chammas v Harwood Nominees Pty Ltd (1993) 7 ANZ Insurance Cases ¶61-175 referred to Leeder v The Mayor, Etc, of the Town of Ballarat East [1908] VLR 214 referred to Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 cited Repatriation Commission v Moss (1982) 59 FLR 226 referred to Sinanoglou v Australian Iron and Steel Pty Ltd (1967) 68 SR (NSW) 279 referred to Superannuation (Resolution of Complaints) Act 1993 (Cth), s 37(6)